Court Orders Property Sold

court-ordered-sale

A court may order co owned property sold and stipulate the terms of the sale, especially when one owner is unreasonable.

I have previously blogged about the case of Mondonese v Delac Estates at both the trial and appeal levels.

The Court had found that the gratuitous transfer by the parties’ deceased mother had resulted from the defendant’s exercise of undue influence upon her.

The Court ordered that the house formed part of the mother’s estate.

The defendant appealed and the appeal was dismissed.

The Court found that the defendant was un- cooperative with the sale of the property and granted the plaintiff the conduct of the sale upon  the following detailed terms,  and reasoning applied by the court in response to each of the parties arguments:

 

” The plaintiff submits that the property should be listed for sale with a realtor selected by the plaintiff at a price recommended by the realtor and that any sale be subject to court approval unless the parties agree. The plaintiff submits that the net proceeds of sale should be divided into two shares, one share for each party. The plaintiff further submits that from the respondents share she should be paid one-half of the value of the deposits that formed part of the estate, which the respondent has failed to pay over to her. She also asks that she receive her costs of the application and costs in connection with the sale process.

[10]        The defendant submits that the application ought to be determined in accordance with the provisions of the Partition of Property Act, R.S.B.C. 1996, c. 347 [PPA] and refers to s. 6 of that Act, which reads:

6          In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.

[11]        The defendant submits that there are good reasons why the property should not be sold, namely:

(a)       The history of ownership of the property militates against sale; and

(b)       An order for sale would cause serious hardship to the respondent.

[12]        The defendant’s position, essentially, is that the parties should be declared to be tenants in common, each as to an undivided one-half interest, and that the defendant should continue to be able to occupy the house, I gather without paying any rent, until he dies or chooses to vacate the property.

[13]        The plaintiff submits that this application does not fall under the PPA and, even if it did, there are not good reasons not to sell the property.

[14]        I agree entirely with the plaintiff’s submissions. “””””’

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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